# Oppostion to gay marriage is legally, intellectualy & logically bankrupt - Powerful article **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [February 11, 2012, 2:45am UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494 "2012-02-11T02:45:47Z")\ **Posts on this page:** 11\ **Page:** 3
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [February 15, 2012, 7:43pm UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/41 "2012-02-15T19:43:15Z")
> [@Illuminatiprimus](#): > > This absolutely isn’t intended as snark - but when I read stuff like this it makes me despair of the American legal system. In the UK we discussed the idea of national civil partnerships, decided we wanted them, and we passed a law saying they existed. Now the debate is being had about marriage and whether it needs to continue to be restricted to hetero couples only, and should the debate be in favour of changing we’ll similarly just pass a law and it’ll be so. SSM for me is proving just how unable the US legal and constitutional system seems to be to respond to emerging social issues. The US consitutional system has responded to this emerging social issue. A debate has been held about gay marriage in this country. Everywhere people have been able to vote on gay marriage it has lost. A few states have been able to force it through after the democratic landslide of 2008, but the vast majority of states have had their legislatures debate this and passed laws against gay marriage. This is how a democracy deals with a new issue, through debating then voting. The pro-gay marriage people had a chance to make their case to the people and were rejected. They did not like this so now they are trying to force it through by judicial fiat. Now we will see if the laws of this country are made by the people or whether unelected government officials will impose laws on the people against the democratically voiced will. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [February 15, 2012, 8:09pm UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/42 "2012-02-15T20:09:14Z")
> [@Bricker](#): > > The problem with a search is there are a zillion threads and many of them run for many pages, so winnowing it down is not trivial. > > Briefly: > > (1) In this country, the federal government has limited, enumerated powers; the states have plenary power. If the federal Constitution doesn’t give the federal government power in an area, then it does not have that power, but states have power in every area unless the federal constitution limits or overrides it. > > (2) When a state forbids same-sex marriage, the typical legal complaint is that this violates the Equal Protection Clause of the federal constitution. > > (3) Equal Protection challenges are analyzed in three different ways, depending on the class created by the law in question. Laws that create racial classifications are analyzed under a “strict scrutiny” standard; laws that impact gender classifications are analyzed under an “intermediate standard;” all others are analyzed under a “rational basis” standard. All of these are terms of art, with defined meanings in caselaw. > > (4) A law that impacts sexual orientation is properly analyzed under the rational basis test. > > (5) The rational basis test is performed by the reviewing court asking if the law in question is rationally related to a legitimate state goal. It does NOT ask if the law is the best or most efficient way of furthering the goal. > > (6) A rational state goal is to encourage procreation through regulation. For example, tax breaks can be given for every child a couple has, or for married couples in general. > > (7) By the same token, marriage can be restricted to opposite-sex couples with the goal of furthering procreation. > > Now, the most common experience I had when point this out was people immediately launched into critiques like, “Well, then why does the state not limit marriage to fertile couples, then?” > > I can only assume they say that because they failed to understand the rational basis test. It does NOT ask if the law is the best or most efficient way of furthering the goal. It merely asks if the law is rationally related to a legitimate state goal. First of all, thank you. This is a far better reasoned set of arguments than any I’ve seen. Now, would 1 -3 apply to any Equal Protection Clause argument? They don’t seem to be especially SSM related. And I’m not saying that they are irrelevant. Now, for 4-7, which is, does furthering a legitimate goal typically allow the reduction in the right to perform actions which might not be furthering that goal? As an example, encouragement of home ownership is a legitimate goal in the same way that encouragement of procreation is. (Assuming that the tax breaks define the encouragement.) Would a ban on renting apartments to people be permissible since it goes against the government goal of home ownership? I understand that a different right is being violated here, but wouldn’t the justification of banning rentals be similar? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2012, 8:45pm UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/43 "2012-02-15T20:45:18Z")
> [@Voyager](#): > > Now, would 1 -3 apply to any Equal Protection Clause argument? Yes. > [@](#): > > Now, for 4-7, which is, does furthering a legitimate goal typically allow the reduction in the right to perform actions which might not be furthering that goal? As an example, encouragement of home ownership is a legitimate goal in the same way that encouragement of procreation is. (Assuming that the tax breaks define the encouragement.) Would a ban on renting apartments to people be permissible since it goes against the government goal of home ownership? I understand that a different right is being violated here, but wouldn’t the justification of banning rentals be similar? Yes, but as you surmise, a ban on renting apartments would run afoul of other protections. It wouldn’t be analyzed under Equal Protection Clause terms, but rather under Due Process terms. And in the Due Process realm, we have caselaw language that would probably protect the renting of apartments, because such renting would likely be called a “fundamental right,” since it is “deeply rooted in our nation’s history.” In other words, because enjoying the right to rent apartments has a long history in our nation, an attempt to ban it now would likely run afoul of the Due Process Clause, a concept called “substantive due process.” ---
**Author:** ![Illuminatiprimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/illuminatiprimus/32/11520_2.png) [@Illuminatiprimus](https://boards.straightdope.com/u/Illuminatiprimus)\ **Post date:** [February 15, 2012, 9:29pm UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/44 "2012-02-15T21:29:09Z")
> [@puddleglum](#): > > The US consitutional system has responded to this emerging social issue. A debate has been held about gay marriage in this country. Everywhere people have been able to vote on gay marriage it has lost. A few states have been able to force it through after the democratic landslide of 2008, but the vast majority of states have had their legislatures debate this and passed laws against gay marriage. This is how a democracy deals with a new issue, through debating then voting. The pro-gay marriage people had a chance to make their case to the people and were rejected. They did not like this so now they are trying to force it through by judicial fiat. Now we will see if the laws of this country are made by the people or whether unelected government officials will impose laws on the people against the democratically voiced will. I’d accept your post (despite the incredibly loaded language) if it weren’t for the fact that three of the states have enacted SSM without using the courts at all. But anyway, I’m derailing the thread and given it’s (as usual) come to be about the US legal system I don’t care enough about the subject to want to keep pushing the point, so I’ll drop it. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [February 16, 2012, 9:53am UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/45 "2012-02-16T09:53:05Z")
So Bricker, let’s save everyone time and keep the hijack to a minimum. You already said you don’t find the argument you laid out to be compelling. So where does it break down? Why is it not compelling? I’ll offer a guess: you have some argument for why the rational basis test should not apply in this issue. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [February 16, 2012, 11:39am UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/46 "2012-02-16T11:39:26Z")
> [@Bricker](#): > > We’ve been down this road before. > > I’m not really interested in doing it again, especially since I don’t believe the arguments are ultimately not compelling, and because some readers don’t seem to be capable of realizing that I’m defending the very narrow point that some arguments exist, NOT the wider point that they should carry the day. If anyone can do it, **Bricker** can. If you get a spare minute, could you PM me either with a summary of the arguments or with a link to a relevant old thread? I promise not to respond. 😉 ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [February 16, 2012, 11:41am UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/47 "2012-02-16T11:41:28Z")
Never mind, I see you went ahead and provided it. Now, of course, I’m curious to know what convinced you there are better arguments _for_ SSM than the argument you had against it. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [February 16, 2012, 1:03pm UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/48 "2012-02-16T13:03:39Z")
> [@JoelUpchurch](#): > > There should be a standard contract that doesn’t actually a lawyer to draft it. There is. It’s called a (Civil) Marriage License. You can’t be married even in church without one. Gender-neutralize the language and there you have it. > [@](#): > > If you are actually planning on having children together, the terms of the contract should spell the responsibility to common offspring and also offspring that predate the marriage. The terms for this are already spelled out in each state’s Family Law Code and are well known to many professions and passingly familiar to a large part of the citizenry, and besides modern Family Law calls for “the best interests and welfare of the child” to be placed ahead of those of the putative parents regardless of marital status so you’re gonna have to work to make an\* a la carte\* contract on parental obligations stand up in court. > [@](#): > > If a SS couple wants to have children, then with our current technology, they both can’t be the biological parent of any offspring. We need to come up with a consistent set up rules for handling that. Which does not require a total overhaul of the system. Family Law Codes or their equivalent\* already \*contemplate situations where legal paternity/maternity/parenthood is in effect with all the rights and duties in the absence of biological link and even in cases where the different true genetic stirp is known, and where the latter loses any legal claim to rights or links. My preference would be for a system as used in many\* Code Civil\* jurisdictions where the real legal marriage only happens in front of a Civil Notary/Clerk, always, no exception, and any religious rite is merely the parties’ choice to have a public blessing of said marriage. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2012, 1:48pm UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/49 "2012-02-16T13:48:46Z")
> [@BigT](#): > > So Bricker, let’s save everyone time and keep the hijack to a minimum. You already said you don’t find the argument you laid out to be compelling. So where does it break down? Why is it not compelling? > > I’ll offer a guess: you have some argument for why the rational basis test should not apply in this issue. Yes. And And my offered argument doesn’t apply to states that adopt SSM by legislative vote, as Vermont, New Hampshire, and New York have done – not to mention the District of Columbia. There are also good reasons that laws creating classification by sexual preference should be analyzed under a heightened scrutiny, not simply rational basis. So on balance, I believe the wise course is for states to adopt same-sex marriage on precisely the same grounds as they do traditional marriage. But I don’t pretend that the opposing view is utterly bereft of any semblance of argument. ---
**Author:** ![JSexton](https://avatars.discourse-cdn.com/v4/letter/j/96bed5/32.png) [@JSexton](https://boards.straightdope.com/u/JSexton)\ **Post date:** [February 16, 2012, 9:01pm UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/50 "2012-02-16T21:01:44Z")
> [@Bricker](#): > > You’re not contending that your conclusion is inescapably true, though, right? You say, “I would argue that…” and then you present a possible scenario. but the whole point of rational basis analysis is that the courts do not substitute their own reasoning for the legislature. The legislature believes differently. That belief is not obviously and self-evidently in error. Even if you conclude another outcome is possible or even more likely than the legislature’s, the point of having a legislature is that the courts don’t act as a second, super-legislature. Interesting, thanks. I’m not nearly as familiar with the legal terms you are, so this is enlightening. I would wager that most opponents of SSM are also unfamiliar with this kind of legal analysis, though, and are not using as the foundation of their argument. ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [February 16, 2012, 9:17pm UTC](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494/51 "2012-02-16T21:17:54Z")
Since I will never argue an opinion until I’ve read a book espousing the other side, I read “Outrage” by Peter Sprigg. I thought my head was going to explode! Example: Since every gay in California did not run out and get married the day gay marriage was legal, it proves gays do not want marriage. The most bizarre argument was the gays should not be allowed to parent children because most child molesters in prison self-identified as being gay or bisexual. [Previous page](https://boards.straightdope.com/t/oppostion-to-gay-marriage-is-legally-intellectualy-logically-bankrupt-powerful-article/612494.md?page=2)